Govt swings both ways on gay sex, faces SC ire

The apex court was told by a top govt lawyer on Thursday that homosexuality was immoral, “against nature” and should be banned — only to be told later by the home ministry that the govt did not share this view. HT reports. Centre tied up in knots | Should gay sex be banned? | Be queer or be square!

The Supreme Court was told by a top government lawyer on Thursday that homosexuality was immoral, “against nature” and should be banned — only to be told later by the home ministry that the government did not share this view.

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The ministry made it clear — even as additional solicitor general PP Malhotra was concluding his three-hour submission to make gay sex a crime before a bench of justice GS Singhvi and justice SJ Mukhopadhyay — that Malhotra’s opposition did not reflect the government’s decision not to take sides on gay sex.

The government’s damage control exercise that did not play out according to the script was aimed at taking a "zero-risk position" during the Uttar Pradesh assembly elections, given the fact that religious groups are strongly opposed to legalising gay sex, sources said.

The goof-up drew the court’s ire. The bench told Malhotra to seek proper instructions and report back on February 28.

The ministry statement said the government had decided against filing an appeal against the 2009 Delhi high court judgment decriminalising same-gender sex between consenting adults.

And in case someone else moved court, it decided not to take sides and instruct the attorney general to “assist” the court.

Then law minister M Veerappa Moily had initially welcomed the high court judgment, calling it “well-argued”. But soon after, the government decided against celebrating the judgment, fearing a backlash from religious leaders. It did, however, decide against filing an appeal. But if someone approaches the Supreme Court, the home ministry had decided in 2009, the Centre would not take sides in the legal battle.

Malhotra, appearing on Thursday for the home ministry in the court that is hearing over a dozen petitions against the high court ruling, insisted that gay sex was “highly immoral” and could lead “spreading diseases (such as AIDS) through such acts”.

Malhotra also read out from the home ministry’s affidavit before the high court, possibly unaware that the home ministry had toned down its stance after the 2009 judgment.